Copyright and the Twitterverse: watch this space

"Copyright And Libel Questions Hit The Twitterverse" is the title of this short-but-sweet piece on Techdirt. Writes veteran group blogger Mike Masnick (with links added by 1709 for the benefit of non-US readers):

"A few weeks back, someone pointed me to a Twitter message where one Twitter user was (jokingly) accusing another of copyright infringement for repeating a message. While the situation was amusing, you knew it was only a matter of time until the question became more serious. Mark Cuban put up a blog post this weekend asking about the copyrightability of Twitter messages. His question revolves around whether or not it's copyright infringement for someone like ESPN to repeat what he wrote in a Twitter message, which he would have preferred they didn't quote.

I'm certainly no copyright lawyer -- so perhaps some could chime in in the comments -- but it seems like there would be two issues here. The first is whether or not the content is covered by copyright -- and, for most messages the answer would probably be yes (there would need to be some sort of creative element to the messages to make that happen, so a simple "hi" or "thanks" or whatever might not cut it). But, the more important question then would be whether or not ESPN could quote the Twitter message. And, there, the answer is almost certainly, yes, they could, just as they could quote something you wrote in a blog post".

If you ran down the fair use test, it's difficult to see how a public Twitter message wouldn't easily qualify. If it's ESPN, it would be for commercial use, but not in the sense of "selling" the content. Plus, it's for journalistic reasons, which is often given a fair use pass. Second is the nature of the copyrighted work -- which, being a Twitter message, I would guess most judges would assume it's expected that the content can (or even should) be repeated. The third test fails, since it would be the entire message, but the fourth test, on "the effect on the potential market for the copyrighted work" would almost certainly point towards fair use. Since the four factors aren't weighted equally, I think the only clear "failure" is the weakest and least important of the four tests (how much of the content was used -- which is way outweighed by the other factors), it's hard to see how this isn't a perfectly reasonable use".

After running through the parameters of the fair use test and mentioning similar problems faced in terms of defamation, Mike concludes: "... we're in for a long series of lawsuits and legal threats having to do with Twitter message".   I think this is a distinct possibility and have already commissioned an article for the Journal of Intellectual Property Law & Practice on this very subject.  1709 will be watching closely for developments.